from the copyright,-paraphrasing-and-the-road-to-truthiness dept

Among the most powerful moments of Selma, the new film about the march Martin Luther King, Jr. led in 1965 in support of voting rights for African Americans, are the speeches, sermons, and eulogies King delivered during that tumultuous period. However, the speeches performed by actor David Oyelowo in the film do not contain the actual words spoken by King. This is because the King estate would not license the copyright in the speeches to filmmaker Ava DuVernay. Thus, the King estate's aggressive stance on copyright has literally forced the re-writing of history.

According to the Washington Post, the King estate licensed the film rights to King's speeches to DreamWorks, with Steven Spielberg producing any resulting films. DuVernay said that she never even asked for the rights to King's speeches "because we knew those rights are already gone, they're with Spielberg." She added that she knew that there were strings attached to the rights: "with those rights came a certain collaboration." In other words, the King estate uses its control over the copyright to control how King is portrayed. The Post article suggests that this control has prevented the making of a feature film about King—until now.

In the summer of 2013, when the nation was commemorating the 50th anniversary of the March on Washington, the King estate refused to allow broadcasts of King's "I Have a Dream" speech. At the time, I wrote a blog post questioning the policy justification for one of the most important speeches in American history remaining under copyright 50 years after its delivery, and 45 years after the death of its author. I argued that King did not need the economic incentive provided by copyright protection to write the speech or deliver it so compellingly. I further asserted that copyright protection was not necessary to ensure that the speech remained in distribution 50 years after the March on Washington. I also responded to the argument that royalties from King's speech have financed the work of the Martin Luther King Jr. Foundation promoting civil rights and social justice by noting that funding valuable institutions is not the purpose of copyright. Additionally, the cause of civil rights arguably could be better advanced by the broadest possible dissemination of his speech, rather than by exploiting it to generate revenue for the Foundation.

The same arguments can be made with respect to King's speeches surrounding the march in Selma. King obviously was not motivated by financial gain when he wrote those speeches. Further, copyright protection was not necessary to ensure that the speeches remained available in the decades since. To the contrary, copyright protection prevented the derivative use of those speeches in the film, thereby potentially depriving new audiences of King's message.

The Washington Post's review of Selma suggests that the director Ava DuVernay made a virtue of necessity in response to her inability to secure the rights to the speeches:

"in a brilliant work-around DuVernay approximates [King's] words, allowing viewers to focus on their meaning rather than how literally Oyelowo reproduces them." Likewise, the New York Times' review observes that DuVernay turned her lack of permission to use the speeches into "a chance to see and hear [King] afresh." In the film, King is "less an orator than an organizer" and is "a man trying to navigate his public role, his private life, and the expectations of his allies and friends."

Proponents of long copyright term might point to these reviews as proof of the copyright system working properly. Denied the ability to quote King directly, DuVernay was forced to create her own expression—paraphrases of King's speeches—and her own interpretation of King's life.

At the same time, the Times recognizes that the inability to quote King directly "may be a blow to the film's authenticity." And this is a serious problem, particularly in a world where people are far more likely to learn history from a biopic than from a textbook. The director of a biopic already must compress complex events that unfolded over months (in the case of Selma) or years (in the case of the Alan Turing biopic, The Imitation Game) into two hours. The director must also add dramatic tension in order to sustain audience interest. (For example, Joe Califano, then a member of the Johnson Administration, has accused DuVernay of falsely portraying a series of conflicts between Johnson and King over voting rights, when in fact they agreed with the both the strategy and the tactics for achieving this objective.) The inaccuracies created by this compression and invented dramatic tension should not be compounded by concerns of potential copyright infringement liability.

Fair use is the obvious solution to the problem of copyright constraining the presentation of historical events. In Bouchat v. Baltimore Ravens, discussed in this post, the Fourth Circuit found the National Football League's use of the "Flying B" logo in highlight films to be transformative because the logo was used "as part of the historical record to tell stories of past drafts, major events in Ravens history, and player careers."

The court further stated:

"Were we to require those wishing to produce films and documentaries to receive permission from copyright holders for fleeting factual uses of their works, we would allow those copyright holders to exert enormous influence over new depictions of historical subjects and events. Such a rule would encourage bargaining over the depiction of history by granting copyright holders substantial leverage over select historical facts."

Similarly, in Fox News Network v. TVEyes, discussed in this post, the court concluded that TVEyes' inclusion of clips in a search engine for broadcast television was a transformative use. The court found that "TVEyes' message, ‘this is what they said'—is a very different message from Fox News'—‘this is what you should know or believe.'"

The primary purpose of including King's speeches in the film Selma would be to inform its viewers of what King said and the impact it had on his audience. Although Ava DuVernay almost certainly believed in what King said, and wanted her viewers to believe it too, that purpose would be secondary to educating her viewers about King and his impact on the course of history.

Based on TVEyes and Bouchat, DuVernay would have had a strong fair use defense had she used King's actual words rather than just paraphrased them. Perhaps she (or her lawyers) decided that historical accuracy was not worth the risk of litigation with the King estate. While it appears that DuVernay remained true to both the style and content of King's speeches, the next director might not be so scrupulous. Indeed, an inept paraphrase of one of King's speeches at the Martin Luther King, Jr. Memorial in Washington, D.C., made him sound, according to Maya Angelou, "like an arrogant twit." The paraphrase subsequently was removed.

The paraphrasing of Martin Luther King, Jr. puts us on the slippery slope to truthiness. The King estate should be far more worried about people paraphrasing King than quoting him accurately.

from the three-years-of-content-is-not-really-an-'archive' dept

It appears the UK Conservative Party isn't quite finished "archiving" its history into the nearest memory hole. Last week, it was discovered that PM David Cameron's party's webmasters had sent speeches made from 2000-2010 into the ether, aided by an altered robots.txt that kept Google from crawling its pages and prompted a retroactive deletion of the corresponding pages from the Internet Archive.

On Wednesday, Chris Grayling said that there is "a limit to how much you can put and keep on your website year after year", and a Conservative spokesman claimed that the changes to the website were to "allow people to quickly and easily access the most important information we provide – how we are clearing up Labour’s economic mess, taking the difficult decisions and standing up for hardworking people.”

Yes, storage limits can be an issue, but it's hard to believe the party currently in power in the UK can't afford to purchase more. Furthermore, if storage is such an issue, let YouTube handle the storage/bandwidth and just host links at the website. Finally, storing text takes next to no space at all, so this excuse doesn't really pan out for all the (text only) speeches the Conservatives removed last week.

The second statement is nothing but spin, so nothing to see here. And the spokesmen didn't have much to say when confronted with previous non-theoretically-storage-related actions.

When asked about the YouTube deletions and why it was necessary to remove webpages from the Internet Archive, a spokesperson for the Conservatives declined to comment.

What this looks like is a swift rewrite of history ahead of the general election. ComputerWeekly, which broke the news of the first Conservative history cull, suggested the party was attempting to bury Cameron's old campaign promises, which revolved around openness and transparency. The Guardian has another theory.

Jim Killock, executive director of the Open Rights Group, pointed out that the material is still available on the UK Web Archive, a project run by the British Library to archive British websites.

Nonetheless, he said: "The suspicion has to be that at the point they are engaged in a huge debate about mass surveillance … they are removing the videos where they criticise Labour for doing the same thing. That's why it's absolutely important that that material remains available."

Sadly, it's not just one political party refurbishing its past. The Labour party has been busy as well.

Labour has also edited its news archive. The party's new website only goes back to September 2010, leaving Ed Miliband's keynote at the party conference that year the oldest speech available. But unlike the Conservatives, Labour didn't require internet archivists to remove stored versions, leaving pages dating back to July 2002 in the database.

Archives for both are still available elsewhere, but the public-facing sites themselves are now willfully incomplete. The digital age may have promised a future of transparency and openness, but both parties have chosen to use these tools to craft flattering narratives and spirit away inconsistencies.

from the because-that-ALWAYS-works...-ALWAYS dept

Every so often a public figure will come to the dubious conclusion that the past can be erased. This was a difficult proposition even before the advent of the internet. These days, it's nearly impossible. But long odds rarely deter the particularly inspired… or particularly stupid.

Some abuse the easily-abusable laws in European countries to generate memory holes. Max Mosely has been fruitlessly pursuing the removal of so-called "not actually a Nazi orgy" photos for years. Others simply blunder around, issuing baseless legal threats and questionable DMCA notices. Others, like the UK Conservative Party, do their own dirty work.

Being willing to wipe your own collective memory takes a special kind of bravery, the kind often associated with reckless acts shortly preceded by the phrase, "Hold my beer."

The Conservative Party has attempted to erase a 10-year backlog of speeches from the internet, including pledges for a new kind of transparent politics the prime minister and chancellor made when they were campaigning for election.

Prime minister David Cameron and chancellor George Osborne campaigned on a promise to democratise information held by those in power, so people could hold them to account. They wanted to use the internet transform politics.

But the Conservative Party has removed the archive from its public facing website, erasing records of speeches and press releases going back to the year 2000 and up until it was elected in May 2010.

The Conservative Party did more than simply delete the speeches from its site. It also blocked out Google and the Internet Archive using an extensive addition to its robots.txt. This is just a small excerpt of conservatives.com's bot blocking additions.

So, how did it get the Internet Archive to remove its historical collection, something ComputerWeekly writer Mark Ballard likens to "sending Men in Black to strip history books from a public library and burn them in the car park?"

Well, apparently the Internet Archive treats changes to robots.txt files as retroactively applicable. Once the bot blocker informed IA it was no longer welcome to crawl these pages, it erased the corresponding archives as a "matter of courtesy."

By making this change, the Conservative Party was able to eliminate 1,158 "snapshots" the Archive had gathered over the last 14 years, a rather breathtaking eradication accomplished without ever having to strong arm internet historians or stare down Google directly.

The Conservative Party has offered no comment on the slash-and-burn of its own history, simply saying it has passed along the query to its "website guy."

A search through its xml sitemap confirms that nothing remains of the pre-2010 speeches. The earliest speech listed in the xml file is from June of 2010. Users browsing the site will be hard pressed to find any speeches earlier than January of 2013, however. Searching through the sitemap will uncover direct links to earlier speeches but clicking the "Archive" button to view older speeches automatically limits results to 2013. Here's the shady URL the "Archive" button leads to:

So, why are these speeches being buried? Perhaps it has something to do with the Cameron's promises of government transparency and accountability made while campaigning, something he increasingly lost interest in once in power.

"Above all, the power for anyone to hold to account those who in the past might have had a monopoly of power - whether it's government, big business, or the traditional media," said Cameron, who was then campaigning for power as leader of the Conservative opposition.

Cameron was going to make sure the information revolution would hold people like prime ministers to account, he said another speech on 11 October 2007, at the Google Zeitgeist Conference in San Francisco.

"It's clear to me that political leaders will have to learn to let go," he said then. "Let go of the information that we've guarded so jealously."

Transparency would make public officials accountable to the people, said Cameron then. He was riding at the front of the wave that would wash us into a new world, and a new age.

Like many politicians, transparency and accountability sound like great ideas when you're lapping up applause (and votes) and hoping to stick it to your legislative adversaries. But it swiftly loses its luster the first time it's applied to you and your activities. Then it's back to the old ways that have "worked" for years. Obfuscation, opacity and a growing tendency to view your constituents as the enemy swiftly replace the campaigning ideals.

Years down the road, after many years at the helm, this viewpoint realignment culminates in running a decade's-worth of empty promises through the internet shredder in hopes of trimming down the number of irate citizens using your own words against you.

All this effort will do for the Conservative Party is make it look worse. There's zero net gain to be had here. Nothing completely vanishes from the net and even if the Internet Archive may err on the side of courtesy in its efforts, others will be saving, securing and stashing the same documents and webpages certain entities wish to remove from the public eye. The harder they try, the more likely they are to fail.

from the urls-we-dig-up dept

Maybe you remember your graduation. Maybe you don't. If you were lucky, you graduated college and knew exactly what you wanted to do. You had a job all lined up, and when asked about your plans, you could avoid saying anything along the lines of:

I don't want to sell anything, buy anything, or process anything as a career. I don't want to sell anything bought or processed, or buy anything sold or processed, or process anything sold, bought, or processed, or repair anything sold, bought, or processed. You know, as a career, I don't want to do that.

Here are just a few more pithy words for recent graduates. (PS. Congratulations!)

from the urls-we-dig-up dept

Graduation season is just about here, and lots of students are going to put on some black robes and accept a very expensive piece of paper and a hand shake. And along with those newly-minted degrees, plenty of older and more experienced folks will try to offer some advice. Here are just a few interesting words of wisdom for young grads.

from the but-does-it-make-sense dept

In an interesting appeals court ruling, a court has said that there was no free speech violation in two individuals being removed from a George W. Bush speech (while he was still President), because of the bumper stickers on their cars (which were decidedly anti-Bush). While I'm a big supporter of free speech -- especially when it comes to criticizing the President or other elected officials -- I have to admit that I tend to agree with the court here. The President and his staff had every right to determine who attended the speech for whatever reason. Excluding anyone from hearing a speech isn't a violation of their free speech rights, because there is no guaranteed right to attend such a speech in person. That said, I think it's particularly lame that a President -- or anyone in authority -- would purposely keep out those who disagree with them, rather than being willing to respond to their criticisms. As we saw just last week when President Obama responded directly to Republican questions, responding to those who disagree with you can often be quite a lot more productive than ignoring them.

from the get-over-it dept

The family of Martin Luther King Jr. has unfortunately done plenty to tarnish the great man's legacy over the last few decades, specifically in being overly aggressive claiming "ownership" of anything having to do with King, and demanding money from various entities that show King's speeches. A decade ago they were involved in a big legal fight with CBS for showing King's I Have A Dream speech. Who knew that dream was locked up thanks to intellectual property laws?

from the ban-everyone! dept

Al Gore, who, last we checked had founded a "citizen journalism"-based TV channel and internet site, has apparently told the RSA conference that one of the terms of his keynote speech at the event is that no press are allowed (and no photographs or audio or video recording either). That may have made sense years ago, but in this day and age, where everyone is a "reporter" and everyone has an outlet, it seems rather ridiculous to even think that you can ban "press," let alone make it a clause in a speaking agreement. Last year, the same event drew 17,000 people. You have to figure that a decent number of them have blogs, social networking pages, Twitter accounts and whatnot -- and a very high percentage probably have mobile phones with cameras on them as well (and, of course, it doesn't hurt that CNET appears to be offering to give people a free fleece for taping the event). Sorry, Mr. Vice President, even if you ban them, the press will be attending your talk.

from the it's-called-learning-from-others dept

There's been a rather bizarre debate about plagiarism kicked off by charges from Hillary Clinton's campaign that Barack Obama has "plagiarized" some of his speeches. This isn't a political blog, and I won't get into the politics of this, but we do talk about plagiarism here, and it's a ridiculous claim. In the past, we've noted that it's time to rethink the concept of plagiarism, and even pointed to Jonathan Lethem's fantastic defense of plagiarism, which was entirely plagiarized itself. Many people wrongly confuse copyright and plagiarism -- even though they are two separate things. Copyright has nothing to do with making sure someone gets credit for their work. What some people want to call plagiarism, others are realizing is actually a form of collaboration. Ideas and words do not come to us uniquely as a burst of inspiration -- but are built on what we have all learned from others. When anyone speaks, they are "plagiarizing" others in some form or another. Name a political candidate who has only uttered his or her own words, not taking anything from anyone else and improving on it in their own way.

Thankfully, various speechwriters have come forward to ridicule the charges of plagiarism, noting that all political speeches pull from others, and when is the last time you heard a politician credit his or her own speechwriter for a speech he or she had just given? Copyright expert William Patry has blasted the charges as well. In fact, most of the commentary seems to be about what a lame tactic it is. Most amusing of all, perhaps, are the false claims by one news organization that it broke the story. Think about that for a second: a news organization is demanding undeserved credit for breaking a story on a politician who, by omission, failed to credit where his ideas came from. Which is worse? Claiming credit for something you did not do, or failing to credit a friend and advisor who provided you with an idea you built on?

But the key point here is that I want a politician who plagiarizes. I want a politician who takes the ideas of others, mixes them around and comes out with something better. I want a politician who doesn't think that all good ideas spring from his or her head alone, but knows that by listening to others, and by internalizing those ideas, remixing those ideas and building on top of those ideas something better, something more profound, something more meaningful can be produced. Any politician who chooses not to build on the ideas of others and who insists that only he or she creates the speeches and policies put forth is not a politician worth following.